The Other Problem with SOPA and PIPA: They Won't Work

The controversial pieces of legislation aimed at stopping piracy on the Internet—which sites like Wikipedia, Reddit, and XKCD have gone black today to protest—represent a fundamental misread of the problem they are designed to control.

There don't seem to be a lot of friends for SOPA on the Internet today. The Stop Online Piracy Act, which is pending in the House of Representatives, along with its sister legislation in the Senate, the Protect IP Act, have caused a massive 24-hour protest by sites such as Google and Wikipedia. The former has blacked out its logo, and the latter has disabled its English-language site for 24 hours. The White House has officially expressed concerns about parts of the legislation, and several members of Congress who previously supported SOPA are now backing ever so slowly away.

What's got everyone so riled up? Well, it was obvious from the start that the bill's language was over-broad and granted troubling enforcement powers to authorities. Under the original language of SOPA, copyright holders who found that a rogue foreign site was hosting and distributing their content could get a court order to force U.S.-based service providers to block access to that site. One provision that legislators now seem to be dropping was called DNS blocking, which would force the Internet's main Domain Name System servers to block requests for these rogue sites.

With all of the attention, many of the details of these bills are still in flux, but critics claim that the legislation is so vague and sweeping that it is bound to end up censoring legitimate content. Proponents of the bill claim that this is just scaremongering, and that care would be taken to ensure the law was applied judiciously and only against those sites that are distributing illegal content.

There is little disagreement about the scope of the problem of piracy. Offshore sites that are beyond the reach of U.S. law enforcement make it easy to grab pirated movies, music and software. The music and movie industries lose billions in potential revenue because of online theft, and it would seem logical to attack the problem where law enforcement has jurisdiction—U.S.-based service providers and search engines. Many critics—including our own contributor, MythBuster Adam Savage—have proclaimed that SOPA and PIPA provide too powerful a club to people who might be tempted to swing it for all the wrong reasons, but I'd argue that there is a bigger reason to distrust these types of legislation: They won't work.

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The analogy of SOPA and PIPA as clubs is apt, but the problem is that a club is the wrong type of tool to deal with a problem like piracy. The music and movie industries, which have the most stake in SOPA, believe they have a pest problem—they think of the sites that distribute and profit from their copyrighted content are pests that need to be eradicated. And if you have a pest problem, it makes sense to debate the size of the club you need to clobber your pests with. But the entertainment industry doesn't have a pest problem. They have a leak, and a club is a terrible tool for dealing with a leak.

The failure of the entertainment industry—and, consequently, the legislators who are trying to help them out—to understand their problem is because of an even more fundamental misunderstanding about the products they are selling. They believe they are selling music and movies, discrete pieces of entertainment. But since the advent of the compact disc and DVD, the entertainment industry has been selling data—and data is inherently fluid and leaky. If you cannot control the way you sell and distribute your data, you are going to suffer from leaks, and no legislative clubs are going to plug those leaks.

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Consider the tactic of DNS blocking. If a copyright holder were able to compel the domain name servers that service United States Internet users to blacklist a site in, say, Tajikistan, that doesn't mean the site has disappeared. It still has a numerical IP address that will take anyone to the site—all the DNS servers do is match the name of the site to that IP address. So you can imagine how easy it would be to circumvent such a policy. Instead of typing "thepiratebay.org" users would instead just type "194.71.107.15"

While the entertainment and Internet industries argue about the appropriateness of legislative remedies to the piracy problem, any approach that treats piracy like pest control is likely to spawn more creative pests.

A better approach would require a fundamental reexamination of the products the entertainment industry is selling and the way that industry is selling them. If data is inherently fluid, sell it like a fluid—charge me a monthly fee and give me control of the tap. (This is already starting to happen with subscription services such as Netflix, Spotify, and Rdio.) Or treat it like bottled water or soda—create an airtight, trustworthy, sealed container, keep the quality high and the price low, make sure it's available wherever I'm thirsty, and make it easier to buy it than to steal it.

For sure, there must be legal protection of copyright, but it's pointless to constantly ramp up the legislative tools for enforcement to chase the moving target of piracy. At some point, the entertainment industry has to innovate new ways of selling its content and new ways of protecting its content. And, frankly, they are also going to have to accept some element of loss as part of the cost of doing business.

Until that happens, no club will ever big enough or nimble enough to stop piracy.

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